In the first-known application of Wisconsin's two-year-old shield law, Judge Guy Reynolds of the Sauk County Circuit Court refused a request by the state's Department of Justice to issue subpoenas to three journalists who covered an Amish farmer's sale of unpasteurized milk products.

In June 2010, Wisconsin state authorities raided Vernon Hershberger's Loganville dairy farm, shutting it down for selling raw products to the public. During the raid, state authorities placed seals on the coolers containing his raw milk products and issued a holding order prohibiting their sale. Although prohibited in Wisconsin, the issue of consumption of unpasteurized dairy products is controversial in the nation's largest dairy-producing state.

The next day, Hershberger broke the state's seals and resumed sales. Madison-area journalists, including Chris Woodard of WMTV, a Gray Television station, covered Hershberger's defiance. Their reports included comments by Hershberger that he continued to sell because he believed the raw milk ban harmed Wisconsin families. State prosecutors filed motions under the shield law in September seeking testimony at the January 2013 trial. While the Wisconsin Shield Law, Wis. Stat. §885.14, provides journalists with an absolute privilege for confidential sources, it provides a qualified privilege for all other newsgathering information and materials, whether published or unpublished.

The law provides for a two-step process. First, in criminal cases, the party seeking the subpoena must show, without the aid of the information sought from the journalist, that there is probable cause that a crime has occurred. Only then may the court reach the four-part test under which the subpoenaing party must show that the information sought from the journalist is (1) highly relevant, (2) necessary to the proof of a material issue, (3) not obtainable from any other source and (4) that there is an overriding public interest in disclosure of the information.

Judge Reynolds heard the state's motions on November 27, 2012, before a crowded courtroom full of Hershberger supporters. The state argued that the reporters' testimony was needed to prove that Hershberger defied the state's orders by breaking the seals and resuming sales, and also to authenticate Hershberger's statements to the journalists. The journalists argued that the state failed to meet its burden to show that the information was not obtainable from any other alternative source and questioned the relevance of the purported "admissions."

During the hearing, the court was shown countless examples of possible alternative sources for the same information sought from the journalists. For example, the court saw screen-shots from the news reports showing numerous onlookers present at Hersherberger's farm that day. The court also saw other examples of Hershberger speaking publicly, making the same or similar statements to those that the state claimed were "admissions."

Judge Reynolds convened a teleconference two days later to announce his opinion, denying the state's motions in an hour-long oral opinion. Since the law had not yet been applied, the court pointed to the long history of Wisconsin's common law privilege as a guide to interpreting the factors under the stronger 2010 statute.

On all four factors, the court found that the state failed to meet its burden. The court questioned both the relevance and necessity of the purported admissions, finding that the statements were either so vague, or paraphrases, that would be non-admissible hearsay.

More significantly, the court found that even if the admissions and the reporters' authentication testimony were relevant and necessary, the state's total failure to show exhaustion of alternative sources was fatal to its motions: "[The evidence] cannot be shown in the exact same way, as I think the state repeatedly argued, but I'm satisfied essentially from the listing of other information possibly available to the state by Attorney Shenkman that there is evidence exclusive of the reports of the newspersons that can be marshaled to support the state's burden of proof on the elements of each offense."

Finally, although the court did not reach the final balancing factor, it indicated that when doing so it would weigh the nature of the case (such as a serious criminal offense) against the role the journalist played in covering the story and the public importance of the issue.

Holland & Knight represented Gray Television station WMTV in this matter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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